This week’s top three summaries: R v Huang, 2022 BCSC 371: NCRMD & #morality of act, R v Gore, 2022 ABPC 52: NCRMD & drugs, and R v Siddiqui, 2022 ONCJ 62: #facial recognition disclosure.
This week’s top cases deal with issues that do not arise in the vast majority of cases. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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R v Huang, 2022 BCSC 371
[March 7, 2022] NCRMD – Knowledge of Morality of Act [Justice Mayer]
AUTHOR’S NOTE: There are two routes to obtaining a verdict of Not Criminally Responsible by reason of Mental Disorder (“NCRMD”). One is to prove on a balance of probabilities that the person did not appreciate the nature and quality of the act (usually due to a mistake of fact or present delusion/hallucination). The second, upon which this case was decided, is to prove that the person lacked the capacity to know their act was morally wrong. In this case the accused was found to appreciate the nature and quality of their act, but lacking in the capacity to know what they did was morally wrong due to the general delusions brought on them by schizophrenia.
Overview
[1] The accused John Huang stands charged with the second degree murder of Damien Leung on November 14, 2020 in Vancouver, contrary to Section 235(1) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] It is admitted that on November 14, 2020, shortly after 9:08 pm, Mr. Huang stabbed and killed Mr. Leung in a back alley in Vancouver, close to the home
Mr. Leung shared with his partner and her three children. Mr. Leung was
Mr. Huang’s friend, and perhaps his best and only friend.
[3] Medical records and the observations of family indicate that from at least April 2019 Mr. Huang had begun to experience symptoms of mental illness including paranoid delusions, auditory hallucinations, anxiety and depression.
[4] At the time Mr. Huang stabbed Mr. Leung, he was under the paranoid delusion that Mr. Leung had previously poisoned his milk during an evening when the two friends were out for dinner.
[5] Mr. Huang raises the defence of being not criminally responsible for the death of Mr. Leung as a result of mental disorder, or NCRMD, pursuant to s. 16(1) of the Criminal Code. In order for the NCRMD defence to apply Mr. Huang must prove on a balance of probabilities that at the time of the offence he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts or knowing that they were wrong.
[8] Both psychiatrists are of the opinion that prior to and at the time of the offence Mr. Huang was suffering from a serious mental disorder, schizophrenia, which is a form of psychosis. As well both psychiatrists, although for arguably different reasons, are of the opinion that when Mr. Huang stabbed and killed Mr. Leung, that although he was capable of appreciating the nature and quality of his acts he lacked the capacity to know the moral wrongfulness of them.
[10] For the reasons set out below, I am satisfied beyond a reasonable doubt, based on the admissions and video evidence reviewed at trial that Mr. Huang murdered Mr. Leung on November 14, 2020. I find on a balance of probabilities that Mr. Huang was suffering from a serious mental disorder, schizophrenia, at the time that he committed this offence and that as a result he was incapable of knowing that what he was doing was morally wrong. As a result, I find that the defence of NCRMD is made out.
Facts
[14] During the early morning hours of November 14, 2020, Mr. Huang placed a number of calls, some unanswered, to Mr. Leung’s cell phone. Mr. Huang spoke to Mr. Leung and his common law partner and during these calls Mr. Huang accused Mr. Leung of spiking milk that Mr. Huang had purchased at a store when the parties were out for dinner one evening. Mr. Leung denied doing so. Mr. Huang told Mr. Leung that voices in his head had told him that Mr. Leung had spiked his milk and that Mr. Leung was lying. Mr. Leung had not spiked Mr. Huang’s milk.
[17] Seconds after entering the back alley Mr. Huang removed a knife from his jacket pocket, turned towards Mr. Leung and stabbed him in the chest and abdomen area approximately seven times. Mr. Leung tried to escape but fell to the ground and tried to block Mr. Huang from stabbing him with his feet. Mr. Huang briefly stopped and Mr. Leung ran into a nearby driveway. Mr. Huang pursued Mr. Leung into the driveway and after briefly continuing his attack sat down in the driveway and leaned against a shed. After a minute he got up and walked back towards the alley holding the bloody knife he had just used to stab Mr. Leung.
[18] Mr. Huang paced back and forth in the alley and when he started to leave was pinned against a fence by a vehicle driven by an elderly neighbourhood resident. The neighbour had called 911. Mr. Huang eventually wriggled free and walked to the street and then paced back and forth on the sidewalk before he was arrested by Vancouver Police officers at approximately 9:08 pm.
Evidence of Mental Disorder Prior to Offence
[20] There is evidence which supports the finding made by Drs. Lacroix and Tomita that Mr. Huang had suffered from schizophrenia prior to November 14, 2020 – the date of the offence. A summary of this evidence includes the following:
a. While he was in Toronto, sometime between 2016 and 2018, he told his cousin that someone was putting fluoride in his water and it was making him sick;
b. In 2018 he told his parents that an unknown person who claimed he could promote Mr. Huang’s music had infected his computer with a virus and was going to kill him and burn down his house. In April 2019 he prepared a report to police alleging that this person was threatening him and his family but was persuaded not to go to police by his parents;
c. In April 2019 he saw his family doctor who recorded symptoms of paranoid delusions, auditory hallucinations, anxiety and depression and referred Mr. Huang to a psychiatrist. During a subsequent appointment with a psychiatrist a few days later Mr. Huang’s family reported that Mr. Huang had said he felt like was being chased and killed and that strangers would come into his house and kill his mother….
f. On November 14, 2020, Mr. Huang told his father that he heard voices and felt that someone was in his head and talking to him. He expressed concern that his friend Mr. Leung had given him something to harm him when he was not paying attention. When his father took him to the hospital later that day Mr. Huang complained of racing thoughts, auditory hallucinations, insomnia and shortness of breath. …
Evidence of Mental Disorder After the Offence
[21] After his arrest Mr. Huang was taken to a hospital for treatment to his hand. He had previously expressed no pain or discomfort when his hand was bandaged after his arrest, despite having sustained severe cuts. While he was at the hospital he made the spontaneous statement that he was poisoned by Mr. Leung. He appeared to respond to imaginary voices, presented with diminished emotional expression and spoke with a delayed verbal response.
[23] The behaviour exhibited during Detective Nemeth’s interview of Mr. Huang are consistent with Mr. Huang suffering from schizophrenia. For example, during the interview:
a. Mr. Huang continued to express the paranoid delusional belief that he had been poisoned by Mr. Leung and indicated that Mr. Huang felt justified in killing him.
c. During a time when Detective Nemeth had left the interview room Mr. Huang was heard and seen whispering and speaking, either to himself or someone who was not present in the room.
[24] After he was placed into custody and taken to the Vancouver jail Mr. Huang’s behaviour became problematic and at one point he was placed in restraints. He denied hearing voices but complained of cracking noises. Video surveillance taken of Mr. Huang while he remained at the Vancouver jail show him actively responding to unseen stimuli and engaging in bizarre, repetitive movements in his cell.
[26] Mr. Huang was admitted to the Forensic Psychiatric Hospital on November 24, 2020 and was certified under the Mental Health Act by a psychiatrist, who noted a preliminary diagnosis of “?delusional disorder”.
[31] Of importance to a potential finding of NCRMD, and as I have already stated, both psychiatrists are of the opinion that Mr. Huang was unable to know that when he stabbed Mr. Leung, that his actions were wrong. Dr. Lacroix’s opinion is that Mr. Huang’s paranoid conviction that Mr. Leung had poisoned him was directly linked to his decision to attack Mr. Leung.
The Legal Framework
[33] I find that the Crown has proven beyond a reasonable doubt that Mr. Huang committed the offence of second degree murder. This is admitted by the defence. I must now consider whether the requirements have been met under s. 16(1) of the Criminal Code for a finding of NCRMD.
[36] In R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, [Cooper] Justice Dickson defined disease of the mind as one which “embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning” but excludes self induced states, such as those caused by drugs or alcohol, or transitory mental states: Cooper, at 1159.
[37] In Cooper, Justice Dickson confirmed that it is the function of the psychiatrist to describe an accused’s mental condition from a medical point of view and although a psychiatrist may be asked to provide an opinion whether a mental condition constitutes a disease of the mind, it is for the judge to decide whether this is the case: Cooper, at 1157-1158.
[38] If I find that Mr. Huang suffered from a mental disorder at the time that he stabbed Mr. Leung to death I must then decide whether there is a direct connection between his mental disorder and the homicide. There are two ways that this finding may be made – first, by finding that Mr. Huang lacked the capacity to appreciate the nature and quality of the act of stabbing and second, by finding that he lacked the capacity to know that the act of doing so was morally wrong: R. v. Coogan, 2021 BCSC 217, at para. 48.
[39] The Crown and Defence both accept, as was opined by Drs. Lacroix and Tomita, that Mr. Huang appreciated the nature and quality of his act of stabbing Mr. Leung. The circumstances of the homicide and Mr. Huang’s subsequent statements to Detective Nemeth indicate an intentionality on his part. If I find that Mr. Huang appreciated the nature and quality of stabbing Mr. Leung, the question to be answered is whether he knew that this act was morally wrong.
[40] In R. v. Vandenberg, 2019 BCSC 1838, Justice Power set out the legal principles to be considered in determining whether a person knew that their acts were wrong:
[58] As outlined by Chief Justice Lamer, for the majority, in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, “wrong” means “morally wrong”, as opposed to merely “legally wrong”. Chief Justice Lamer stated that the defence of insanity is available where, due to a disease of the mind, the accused is “incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society” (1354). The court further clarified that the defence of insanity is available regardless of whether the accused know the act is contrary to law (1355-1356).
[60] In determining whether an accused was incapable of knowing the act was wrong, Justice McLachlin, as she then was, for the Court in R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507 at 518 emphasized that:
The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.
[41] As was further set out at para. 26 of Oommen the ability to make a rational choice may result from “delusions which make the accused think that an act which is wrong is justifiable” or a “disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing”.
Analysis
Did Mr. Huang Suffer From a Disease of the Mind?
[42] The medical evidence establishes that schizophrenia is a chronic and persistent mental disorder characterized by an impairment in reality testing, or the inability to distinguish internal and external realities. Symptoms may include delusions, hallucinations, disorganized speech, and disorganized behaviour.
[43] As I have already said both Drs. Lacroix and Tomita are of the opinion that at the time of the homicide Mr. Huang was schizophrenic.
[44] The evidence establishes that in the days leading up to the homicide Mr. Huang was paranoid, suffering from auditory hallucinations and held the delusionary belief that Mr. Leung had poisoned his milk. Some of these symptoms existed well before the homicide. Further, the evidence establishes that after the homicide, Mr. Huang continued to display symptoms of schizophrenia, which lends support to a finding that he was suffering from this condition at the relevant time.
[45] I find that at the time of the homicide on November 14, 2020, Mr. Huang was suffering from a disease of the mind, schizophrenia, which qualifies as a mental disorder under s. 16(1) of the Criminal Code.
Did Mr. Huang Appreciate the Nature and Quality of the Act?
[47] When Mr. Huang arrived at Mr. Leung’s residence on the night of November 14, 2020 he had a knife in his possession. He then specifically asked for Mr. Leung. Video footage shown at trial shows Mr. Huang removing a knife from his clothing and stabbing Mr. Leung multiple times and then pursuing him into a nearby garage. As he was approached by Police he said he wanted to turn himself in. In his interview with Detective Nemeth the next day Mr. Huang stated, when he was asked if he remembered stabbing Mr. Leung, “like , oh fucking’ everywhere man”. When Detective Nemeth asked if it was his intention to kill Mr. Leung, Mr. Huang confirmed that it was.
[48] All of this evidence supports a conclusion, and I find, that Mr. Huang appreciated the nature and quality of the act of stabbing Mr. Leung.
Did Mr. Huang Lack the Capacity to Know that the Act was Morally Wrong?
[50] It is not necessary to determine whether Mr. Huang’s acts were motived by self-defence or by a desire to punish. As was stated in Oommen:
There is no suggestion in the authorities that the accused must establish that his delusion permits him to raise a specific defence, such as self defence. The issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person
…
[T]he real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.
Oommen, at para. 30
[51] The evidence establishes that Mr. Huang’s ability to think rationally was disrupted because he was psychotic, sleep-deprived and was experiencing auditory hallucinations.
[52] Further, the evidence establishes that Mr. Huang was under the delusional and irrational belief that Mr. Leung had poisoned his milk, at some point in the past few days. Statements made by Mr. Huang to Detective Nemeth, indicate that Mr. Huang felt that he was justified in taking Mr. Leung’s life as a result of this delusional and irrational belief. This in my view constitutes the type of irrational perception described in Oommen.
[53] I find on a balance of probabilities that as a result of his schizophrenia and the attendant symptoms, and in particular his delusional belief that he had been poisoned by Mr. Leung, that Mr. Huang was deprived of the capacity to make a rational choice about the rightness or wrongness of the act of stabbing Mr. Leung.
Disposition
[54] It is my verdict that Mr. Huang is not criminally responsible for the offence with which he is charged, the murder of Mr. Leung, on account of a mental disorder which rendered him incapable of knowing that the act of stabbing Mr. Leung was morally wrong.
[56] I order that Mr. Huang be confined to the Forensic Psychiatric Hospital pending his disposition hearing, pursuant to s. 672.46(2) of the Criminal Code.
R v Gore, 2022 ABPC 52
[February 28, 2022] NCRMD: Interaction between Drugs and Psychosis [Judge J.B. Champion]
AUTHOR’S NOTE: Delusions or hallucinations brought on by the consumption of drugs do not constitute a disorder of the mind which is a necessary precondition to a successful defence of NCRMD. Often, when there is evidence of drug use, the prosecution attempts to suggest that NCRMD is not available because the condition was brought upon by the voluntary consumption of drugs by the accused. The complicated disentangling of delusions/hallucinations that would be brought upon by drug use and those brought upon by the disorder is the reason this case is useful for the defence. The Crown also attempted to suggest a defence of popping in and out of delusions/hallucinations as a means of overcoming the schizophrenia diagnosis. This fell flat with the experts and the court.
Overview
[1] The accused in this case is facing trial on three counts:
Count 4: On or about the 14th day of April, 2020, at or near Beaumont, Alberta, did unlawfully abandon Gore, Ryder and Gore, Dominic children under the age of ten years, and did thereby endanger its life, contrary to Section 218 of the Criminal Code of Canada.
Count 8: On or about the 14th day of April, 2020, at or near Beaumont, Alberta, did operate a motor vehicle or vessel while being pursued by a peace office, and did, without reasonable excuse, fail to stop as soon as it was reasonable in the circumstances, contrary to Section 320.17 of the Criminal Code of Canada.
Count 10: On or about the 14th day of April, 2020, at or near Beaumont, Alberta did unlawfully assault Kaitlyn Gore, contrary to Section 266 of the Criminal Code of Canada.
[2] He has raised the defence of mental disorder, or not criminally responsible (“NCR”), as provided for in the Criminal Code of Canada, s. 16:
16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Background
[3] An Agreed Statement of Facts (“ASF”) was entered as Exhibit 1 … It stipulated: …
2. On April 11, 2020 Ryan GORE attended a church in Edmonton, Alberta. He was acting erratically and aggressively. He placed multiple knives on the alter and left.
4. At around 11:00 pm on April 14, 2020, Beaumont RCMP responded to a 911 call indicating 3 children were abandoned in a park in Beaumont, Alberta.
5. Cst Pater and Cst Beaulieu attended the park and located three children who were visibly and emotionally distraught. Dominic Gore was visibly shaking as he had no shoes and no sweater. Ryder Gore was buckled into his car seat and was screaming.
6. Cst Pater spoke with Kaitlyn Gore who indicated that Ryan GORE had pulled the children out of their car, told them to get a new family and then got into the car and left. She told Cst Pater that Ryan GORE was driving a silver car with a white trailer and that the trailer lights did not work (“the vehicle”).
7. Kaitlyn later told police that Ryan GORE has been talking about a ghost that wanted to kill the children’s mother and that they needed to move out of the apartment. Kaitlyn also indicated that Ryan GORE called her “dumb, dumb” and said that he didn’t want the children anymore because he didn’t like them. While Ryan GORE was driving the vehicle, Kaitlyn was sitting behind Ryan Gore and he would reach behind and pinch her legs and pulled on her leg hard. Kaitlyn also indicated that Ryan GORE dragged her out of the car with his hands on her wrists and dropped her on the ground and she scrapped her knee on the gravel.
9. Cst Pater went up to the driver’s side window and observed a male in the driver’s seat. The male was Caucasian, bearded, and had arm tattoos. The male also had extremely blood shot eyes and looked as if he had not cared for himself. Cst Pater observed that the driver presented as someone intoxicated by marijuana. The male was later identified as Ryan GORE.
10. Cst Pater introduced himself and instructed the driver to exit the vehicle as he was under arrest. The driver replied “okay” and opened the door. The driver then sped off. Cst Pater had to move out of the way to not be hit by the trailer….
11. A short time later Cst Pater observed the vehicle driving north on 50th Street. Cst Pater activated his lights and attempted to stop the vehicle. Cst Egan of the Beaumont RCMP assisted. Her police vehicle was struck by the vehicle. Cst Pater approached the vehicle and attempted to gain access from the passenger side. He noted that the male he previously observed in the driver’s seat was now in the passenger seat and the driver was a female. The vehicle then reversed and the trailer jack knifed, then the vehicle sped off. Cst Pater initiated a pursuit and followed the vehicle with emergency equipment activated.
13. During the night the vehicle was located near Tofield, AB.
14. At around 11:15 am on April 15, 2020 RCMP a witness observed a male and female in a barn on her property near Tofield, AB. Police attended and found the two individuals hiding in some straw in a pen within the barn. The individuals were arrested and the male was later identified as Ryan GORE. Police observed that Ryan GORE appeared to be intoxicated by drugs.
[4] On the basis of the ASF, I find that the accused has committed the acts and offences as stipulated in the three charges. The issue is whether he is criminally responsible for those acts pursuant to his raising of the s. 16 defence.
Legal Principles
[6] The legal mechanism and process to be followed where an accused raises a s. 16 defence is succinctly summarized in R v Sesay[i]:
[2] Section 672.34 of the Criminal Code provides that a court is to consider a defence of “not criminally responsible on account of mental disorder” (“NCR”) only after finding beyond a reasonable doubt that an accused has committed the acts, or made the omissions, that form the basis of the offences charged.
[3] Section 16 of the Criminal Code sets out the defence of NCR on account of mental disorder. It reads:
16(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person 1: incapable of appreciating the nature and quality of the act or 2: knowing that it was wrong.
[4] Section 16(2) provides that every person is presumed not to suffer from a mental disorder, unless and until the contrary is proved on the balance of probabilities.
[5] Section 16(3) provides that the burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
[6] The legally relevant time that the test must be met is the time when the forming of the basis for the charge was committed (R. v. Cooper, 1979 CanLII 63(SCC), [1980] 1 S.C.R. 1149 at p. 1162).
[7] There is no obligation on the Crown to lead evidence as to the accused’s sanity. To do so would be to defeat the presumption of sanity (R. v. Chaulk, (1990) 1990 CanLII 34 (SCC), 3 S.C.R. 1303 at pp. 1337-1339).
[8] Incapacity for criminal intent may manifest itself in different ways. It may give rise to denial of the actus reus, or of the mens rea. Or, even though an accused may have the mens rea and commit the actus reus, the accused’s mental incapacity may provide a justification based on the fact that his or her mental condition made the accused incapable of knowing the act was wrong (Chaulk, at p. 1321).
[9] A defence of NCR on account of mental disorder will only be successful if an accused is able to meet the requirements of the two-stage statutory test set out in section 16 of the Criminal Code. First, the Court must find that an accused’s mental incapacity resulted from a mental disorder at the time of the alleged events. Secondly, the Court must find that the mental disorder was of sufficient seriousness that it rendered the accused incapable of either “appreciating the nature and quality of his or her act or omission” or “knowing that the act or omission was wrong” (R. v. Bouchard-Lebrun, (2011) 2011 SCC 58 (CanLII), 3 S.C.R. 575, at para. 56).
[7] These prerequisites have been met in this case, and so I turn my attention to the legal principles involved in an NCR determination.
[8] The foundational case in Canada that delineates the jurisprudence in NCR cases is R v Bouchard-Lebrun[ii] (Bouchard-Lebrun), wherein the Supreme Court of Canada provided a roadmap to trial judges who have the responsibility of weighing the NCR defence. The Court stated:
[55] Section 16(2) Cr. C. provides that “[e]very person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility”. An accused who seeks to avoid criminal responsibility on this ground must prove on a balance of probabilities that, at the material time, he or she was suffering from “a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong” (s. 16(1) Cr. C.). In Chaulk, this Court held that imposing this burden of proof on the accused infringed the presumption of innocence guaranteed by s. 11(d) of the Charterbut that this was nonetheless a reasonable limit on that presumption in a free and democratic society. [emphasis added][56] An accused who wishes to successfully raise the defence of mental disorder must therefore meet the requirements of a two‑stage statutory test. The first stage involves characterizing the mental state of the accused. The key issue to be decided at trial at this stage is whether the accused was suffering from a mental disorder in the legal sense at the time of the alleged events. The second stage of the defence provided for in s. 16 Cr. C. concerns the effects of the mental disorder. At this stage, it must be determined whether, owing to his or her mental condition, the accused was incapable of “knowing that [the act or omission] was wrong” (s. 16(1) Cr. C.).
[59] The line of authority based on Cooper clearly confirms that the scope of the legal concept of “mental disorder” is very broad. In Cooper, Dickson J. stated that the “disease of the mind” concept includes “any illness, disorder or abnormal condition which impairs the human mind and its functioning” (p. 1159). In Rabey, Dickson J. explained that “the concept is broad, embracing mental disorders of organic and functional origin, whether curable or incurable, temporary or not, recurring or non‑recurring” (p. 533). While it must be borne in mind that a verdict of not criminally responsible triggers a special mechanism for the management of the accused, the inclusive nature of the definition of “mental disorder” can be explained in particular by Parliament’s wish to give the public a high level of protection from persons who could be a threat to others (J. Barrett and R. Shandler, Mental Disorder in Canadian Criminal Law (loose‑leaf), at p. 4‑12).
[61] …As Martin J.A. stated in an oft‑quoted passage from Simpson, “[i]t is the function of the psychiatrist to describe the accused’s mental condition and how it is considered from the medical point of view. It is for the Judge to decide whether the condition described is comprehended by the term ‘disease of the mind’” (p. 350)…
[63] The respective roles of the expert, the judge and the jury were summarized in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290. Writing for the majority, Bastarache J. stated the following:
Taken alone, the question of what mental conditions are included in the term “disease of the mind” is a question of law. However, the trial judge must also determine whether the condition the accused claims to have suffered from satisfies the legal test for disease of the mind. This involves an assessment of the particular evidence in the case rather than a general principle of law and is thus a question of mixed law and fact…. The question of whether the accused actually suffered from a disease of the mind is a question of fact to be determined by the trier of fact. [Citation omitted; para. 197.]
[70] In Stone, Bastarache J. proposed a flexible approach structured around two analytical tools and certain policy considerations. The purpose of the approach is to help the courts distinguish mental conditions that fall within the scope of s. 16 Cr. C. from those covered by Cooper’s exclusion of “self‑induced states caused by alcohol or drugs” (p. 1159).
[71] The internal cause factor, the first of the analytical tools described in Stone, involves comparing the accused with a normal person. In that case, Bastarache J. noted that “the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state as the accused claims to have done” (para. 206). The comparison between the circumstances of the accused and those of a normal person will be objective and may be based on the psychiatric evidence. The more the psychiatric evidence suggests that a normal person, that is, a person suffering from no disease of the mind, is susceptible to such a state, the more justified the courts will be in finding that the trigger is external. Such a finding would exclude the condition of the accused from the scope of s. 16 Cr. C …
[73] The second analytical tool, the continuing danger factor, is directly related to the need to ensure public safety. The purpose of this factor is to assess the likelihood of recurring danger to others. Where a condition is likely to present a recurring danger, there is a greater chance that it will be regarded as a disease of the mind. To assess this danger, the court must consider, among other factors, “the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur” (Stone, at para. 214).
[74] Although Bastarache J.’s reasons were not explicit in this regard, it stands to reason that danger will be recurring only if it is likely to arise againindependently of the exercise of the will of the accused….
[75] In Stone, Bastarache J. also stated that “a holistic approach to disease of the mind must also permit trial judges to consider other policy concerns which underlie this inquiry” (para. 218). The main policy consideration continues to be the need to protect society from the accused through the special procedure set out in Part XX.1 of the Criminal Code. Thus, if the circumstances of a case suggest that a pre‑existing condition of the accused does not require any particular treatment and is not a threat to others, the court should more easily hold that the accused was not suffering from a disease of the mind at the time of the alleged events.
[77] Although the courts can seek assistance from the existing case law, it would be preferable for them to engage in an individualized analysis that takes account of the specific circumstances of each case. This means that the courts should determine on a case‑by‑case basis, applying the “more holistic approach” from Stone, whether the mental condition of each accused is included in or excluded from the definition of “disease of the mind” proposed by Dickson J. in Cooper.
Evidence of Dr. Alberto Choy
[18] Dr. Choy understood that he was acting pursuant to an order under section 672 of the Criminal Code and that his obligation was to prepare an opinion in relation to the fitness of the accused to stand trial. …
[19] Dr. Choy testified that he did not arrive at a completely definitive diagnosis but indicated that this was not atypical. His opinion was that it was more likely that the accused was suffering from schizophrenia. His differential diagnosis included substance-induced psychosis or a mix of schizophrenia and substance-induced psychosis. He indicated that the presentation with these symptoms can be quite complex and that it could be either of those conditions or combination of the two.
[20] He testified that schizophrenia is classified as a major mental illness. He said that the hallmarks of schizophrenia are hallucinations, delusions, disorganized thinking, as well as a negative syndrome, which causes patients to lose motivation and energy and they cannot plan their lives.
[21] In relation to the situation of the accused, Dr. Choy indicated that there was ample evidence that the accused was suffering from auditory hallucinations at the time of his emergency room presentation. At Alberta Hospital, the accused was hearing and perhaps seeing things. They were delusions and Dr. Choy felt that there were hints of delusions from an April 11th incident in which the accused attended at a church in Edmonton and was armed with knives which he placed on the altar. He demanded that the minister marry himself and his common law wife. Dr. Choy testified that the accused also talked about bizarre ideas that did not make sense. He stated that the accused believed that his children were possessed and that this caused paranoia on the part of the accused. He further believed that members of his family were imposters and that he was being surveilled. Dr. Choy said that it was a classic presentation of schizophrenia.
[23] Dr. Choy testified that when he saw the accused on September 20th, there was some memory loss, but that is not indicative of schizophrenia. The memory loss was more consistent with a drug-induced psychosis and there were gaps in the accused memory. For instance, Dr. Choy said that the accused could not explain why he had gone to British Columbia, what happened there, or why he came home. Dr. Choy said that this was not atypical in a psychotic episode. He also said that all of this could be explained by a substance abuse situation. Dr. Choy also testified that he was aware that the accused had a significant marijuana habit and that it was continuing throughout the episodes that brought him to hospital, but that as the marijuana use decreased, it led Dr. Choy to believe that this was not totally a drug-induced psychosis.
[24] Dr. Choy said that as the accused was hospitalized throughout the summer, he was becoming somewhat “better” with less marijuana use but that many of the symptoms continued. He indicated that that presentation should not occur if this was simply a drug-induced psychosis. He referenced consulting with Dr. Morin who had indicated that they shouldn’t see this level of psychosis continue if it was only marijuana induced.
[25] Dr. Choy said that he found no evidence of malingering or exaggeration on the part of the accused. He did not feel that the accused was “faking it”.
[26] The accused had a limited ability to recall the circumstances of the criminal charges. He said that he couldn’t remember dropping off his children. He remembered being perplexed as to why they were taken away from him. He said he thought that the children may be possessed and he said that his kids were not his and that there was something wrong with him.
[27] Dr. Choy said it this was not atypical for a schizophrenic patient to not recall past incidents.
[28] Schizophrenia is a disease of the brain that can lead to psychosis. He said that schizophrenia is not transient. [PJM Emphasis]
[30] When Dr. Choy was asked whether it was medically possible to give an opinion on the state of mind of the accused at the time of the incidents, Dr. Choy said that he could not be definitive. He felt the most relevant evidence was of disorganization and that the accused did not have the ability to sequence his thinking. What was particularly relevant to Dr. Choy was the presence of multiple delusions about his children and that family members were witches.
[31] Further, the accused felt that something bad was going to happen in the world. Dr. Choy opined that it was more likely than not that the accused left his children because of his paranoia. It was Dr. Choy’s opinion that the accused was psychotic at the time of the offences and it is more likely than not that he had schizophrenia at the time of the offences. Dr. Choy was aware that the accused was abusing substances at the time, but it was difficult to quantify how much marijuana was being used around the time of the offences.
[32] In relation to the moral aspects of the accused’s thinking, Dr. Choy said the best information came from the collateral information which was gathered from his interviews with others and a review of the medical records. Dr. Choy said that the accused had a paranoia and that it was not hard to draw the conclusion that the paranoia was about his children not being his and that is why he left them in the park. It was not hard for Dr. Choy to conclude that the accused did not think that what he was doing was morally wrong at the time and that he was trying to protect himself. Dr. Choy said that his opinion was based on limited information but that he felt the accused did not have the ability to appreciate that his behavior was morally wrong.
[33] … He acknowledged, under cross-examination, that the accused’s information that he used marijuana daily for three years and that each day he used more than one gram per day would classify as heavy cannabis use.
[37] Dr. Choy re-stated in his cross-examination that it was his opinion the accused was likely psychotic at the time of the offences and that he was not able to appreciate whether leaving his children in the park was morally right or wrong.
[38] In re-direct, he clarified his view that at the time of the offences in April, the accused was more likely suffering from schizophrenia based on the noted subsequent psychotic events in May and August. He also indicated the fact that there was lingering or worsening symptoms with decreased cannabis use was a key element to his thinking that this was not a substance-induced psychosis.
[40] Dr. Choy indicated that he had not reviewed the ASF when asked about his opinion on the schizophrenic state of the accused, particularly in relation to the circumstances concerning counts 8 and 10. An adjournment was granted so that he could review the ASF and his questioning continued thereafter.
[41] He testified that he could not provide an opinion as to whether the accused appreciated the moral wrongfulness of the accused acts in relation to the assault charge against his daughter and stated that there were multiple possibilities for those actions to have been a rational act. However, he explained that the pulling out of the car of the daughter by the accused fits the theory that getting his children out of his vehicle was fueled by paranoia and fits the notion of the fact that he was motivated by delusion. He may not have appreciated the moral wrongfulness of those actions, on the balance of probabilities.
[42] In relation to the charge of flight from the police, Dr. Choy stated that there was not enough information and that there are too many competing possibilities to say that those actions were fueled by a delusion. He was specifically asked whether, during a psychotic episode, someone could “go in and out” of psychosis and it was his view that the psychotic event was not “a global event.” He was asked whether the accused was delusional when he abandoned his children but not when he fled the police and Dr. Choy said that it could be the case, but he did not have enough information. He said it could be delusional but that he would need more information about the context of the decision to flee from the police.
[43] … He testified that this was not simply a substance-induced psychosis because with the decrease in marijuana use, there was compelling evidence that the psychotic symptoms continued.
Evidence of Dr. Kevin Morin
[44] Dr. Morin’s first involvement in treating the accused was when the accused was admitted to Alberta Hospital on July 21st, 2020. The accused was first placed in the psychiatric intensive care unit and remained there until August 4th. Dr. Morin met him on his first day of ICU hospitalization. Dr. Morin was involved in sessions with the accused during the seventeen days that he was on Dr. Morin’s unit and that continued until the accused was discharged on August 24th. Dr. Morin estimated he had interviewed and treated the accused approximately a dozen times.
[45] He testified that schizophrenia has different subtypes and that one is ‘disorganized schizophrenia’ and another is ‘paranoid schizophrenia.’ The paranoid subtype is the most common. He felt that the accused had a predisposition to paranoia and his history supported the idea that the accused had prominent delusions. His discharge diagnosis was schizophrenia with a paranoid subtype as the accused satisfied the criteria for a schizophrenic designation.
[46] Dr. Morin concluded that the accused’s behaviors and beliefs had escalated to the point that he displayed bizarre behavior and that this was not an uncommon presentation. While in the psychiatric ICU, he was prescribed Amblify to which the accused responded well. It kept his paranoia in check and the accused improved dramatically. The accused continued on the Amblify when he was discharged as Dr. Morin felt that there was no reason to change the prescription.
[47] When he was asked about what constituted “extreme behavior” of the accused, Dr. Morin identified the agitated aggression before the accused was admitted, particularly the event at the church in April. The accused had attended with knives and a baton and had demanded to marry his common-law wife. He had a feeling of hopelessness and he needed to carry the knives because of the hostile world around him. He rationalized his paranoid behavior and delusions and he felt that “the end was near”. He wanted to leave his children behind because he was so hopeless for them. He recalled the accused saying “what was I thinking?” and this had been brought on by his paranoid delusions.
[48] He testified that all of these were symptoms of schizophrenia and that this had been going on for some time before he was admitted to the hospital. He stated that the accused continued to have ongoing paranoia. Dr. Morin noted that during his hospitalization, the accused was “nothing but polite”. He had a tattoo on his neck that read “Family First”, and the accused went on in great detail about how important his family was. Dr. Morin felt that this supported the notion of paranoid delusion as part of the schizophrenia.
[51] In Exhibit 4, Dr. Morin had noted that the accused was “admitted in a floridly psychotic state”. When asked what he meant by that comment, he said that there was evidence of acute psychosis and that particular people wanted to ruin his life but the accused was quite guarded and refused to provide further information. At that time, the accused was not using illicit drugs, but he was still very paranoid. He felt that he was watched by cameras and surveilled and it was noted that at times he was yelling out the window. He thought other people could read his thoughts. This was all part of a paranoid schizophrenia. The term “floridly psychotic state” refers to someone with a psychosis and who needs intensive medical care. Dr. Morin concluded that the accused met the criteria of being in a psychotic state and he said that the accused felt that everyone in the universe was against him.
[53] At a certain point, the accused gained an understanding of what he had done and that it was very much unlike him and his core beliefs about family. He felt, however, that there were universal powers that were against him. He had abandoned his children in the parking lot while in an agitated state because he felt that they were better off without him because he was the target of a universal conspiracy.
[54] Dr. Morin stated it was his medical opinion that the accused had abandoned his children in the park because he was motivated by schizophrenia or delusions and that he would not have done so if he was not in that way. At the time that he dropped off his children, his sense of reality was so warped that in his mind, he appeared to be saving his children and that that was morally right, and the appropriate thing to do. He did not appreciate what would be the appropriate thing to do. He was not able to appreciate the consequences of his actions because of his psychotic schizophrenia. He was not able to appreciate that it was morally wrong at that time.
[55] Dr. Morin was then asked about the assault charge in relation to his daughter. He stated that the incident revealed quite a bit about the motivation of why it was all happening. The accused had no intent to go to his apartment because there was a ghost there who wanted to kill the children’s mother. He felt that everyone was in danger, and this was reflective of the psychotic state of mind he was likely in. His sensory interpretation of the environment was likely very disoriented because he felt like something behind him could be threatening him. Dr. Morin felt that this is someone who was psychotic at the time.
[56] As concerns the charge of flight from the police, Dr. Morin stated that the accused was convinced that a ghost was pursuing the accused or his partner, and it escalated to the point of him driving around with the trailer to try to escape. This behavior really was suggestive of extreme paranoia and certainly was an example of the bizarre delusions that were supportive of the diagnosis of schizophrenia.
[57] Dr. Morin stated that the pinching and pulling of his daughter as well as his driving pattern while trying to escape the police indicated that he was not able to appreciate the consequences of his actions because of his psychotic state of mind.
[58] He was asked whether, in his opinion, the accused was able to appreciate that his actions were morally wrong, and Dr. Morin stated that it was his opinion that because of the psychotic state of mind, the accused was unable to appreciate that his actions were morally wrong. Particularly in relation to his interactions with the police, Dr. Morin stated that in his psychotic state of mind, the accused could have seen anyone who stopped him as a danger. He was escaping from his unsafe feeling. It was the product of irrational thinking and is not uncommon in the state of psychosis. Dr. Morin felt that it was sheer paranoia and that clearly his sense of reality was very distorted.
[61] Dr. Morin indicated his review of the ASF confirmed that the accused had a brain that was susceptible to exacerbation by cannabis use. He said that cannabis use can have a significant impact on schizophrenia and he had seen many patients that have had that experience. He was specifically asked if the accused would have acted in a similar manner without the cannabis and Dr. Morin’s response was “Absolutely.” He said that a cannabis-induced psychosis is very clear and that it dissipates as the cannabis use decreases. He was also asked about the delusions from which the accused suffered and whether they would have occurred without the cannabis use. He again responded “Yes, absolutely.”
[62] He was then asked whether it was possible that the accused could have acted in a similar manner without cannabis use and whether it was more or less likely without the cannabis use. Dr. Morin testified that putting the two together was “a really bad combination.” He stated that while hospitalized, the accused continued to feel that his thoughts were being read and the paranoid ideations continued, even with a period of sobriety from cannabis use. Dr. Morin stated that it is very possible that without the use of cannabis, he would still have had those symptoms.
[64] On cross-examination, Dr. Morin stated that when the accused assaulted his daughter, his perception and his reality were not the same thing. He was also asked whether, when the accused was pulled over by the police, it was possible that he had heard and understood that the police officer was a police officer. Dr. Morin testified that he couldn’t imagine what the accused must have been thinking in that his reality had surely departed from him. He speculated that the accused could have been in a very delirious state. He noted that his CK level[iv] was such that it would be consistent with a state of delirium and it could have contributed to his delusional state. This is a serious medical issue and it compromised the accused’s mental status. Dr. Morin testified that the increased CK level was more likely due to delirium than exposure to the elements.
[65] In r-direct, Dr. Morin was asked if he had an opinion as to whether the accused had the ability to understand that he was being stopped by the police. His evidence was that the accused’s actions constitute good evidence of psychosis and, therefore, Dr. Morin did not think that the accused appreciated the consequences of his actions when he dealt with the police, nor did he appreciate that what he did was morally wrong.
[66] In answer to the questions directed to Dr. Morin from the court, he confirmed that it was his opinion that the underlying condition of the brain was schizophrenia. He also indicated that schizophrenia, in the absence of psychosis, is a recognized presentation but that psychosis is the hallmark of schizophrenia. He indicated that some patients with schizophrenia present as being symptom-free. He was asked about the term “complete resolution” of psychosis and said that when the accused came to his unit, it was true that the accused had experienced a complete resolution of symptoms. He was asked about Dr. Choy’s statement that in acute psychotic episodes, people do not come in and out and that consistent psychotic symptoms are the typical pattern of behavior. Dr. Morin agreed. He was asked if someone in an acute psychotic situation for several hours would then come out of it for a couple of minutes and then pop back into a psychotic situation. Dr. Morin testified that that would be unusual.
Application of legal principles to the facts and evidence
[68] The criteria established by the Supreme Court of Canada in Bouchard-Lebrun are as follows:
[56] An accused who wishes to successfully raise the defence of mental disorder must therefore meet the requirements of a two‑stage statutory test. The first stage involves characterizing the mental state of the accused. The key issue to be decided at trial at this stage is whether the accused was suffering from a mental disorder in the legal sense at the time of the alleged events. The second stage of the defence provided for in s. 16 Cr. C. concerns the effects of the mental disorder. At this stage, it must be determined whether, owing to his or her mental condition, the accused was incapable of “knowing that [the act or omission] was wrong” (s. 16(1) Cr. C.).
[71] The experts agree that the accused was suffering from a disease of the mind. The diagnosis was schizophrenia, which is typically diagnosed by the presence of psychotic symptoms. The complication in this case was the admitted significant cannabis use and whether not it also constituted a drug-induced psychosis. On the key issue of whether the accused was suffering from a disease of the mind at the time that the offences contained in counts 8 and 10 were committed was more specifically addressed by Dr. Morin than by Dr. Choy. As was pointed out, Dr. Morin was of the view that people that are in acute psychotic episodes due to schizophrenia do not typically demonstrate symptoms of psychosis and then “pop out” for a few moments and then pop back in. He testified that the psychotic behavior is typically consistent.
[72] Applying the Bouchard-Lebrun criteria, the first stage involves characterizing the mental state of the accused, namely was the accused suffering from a mental disorder in the legal sense at the time of the alleged events? I find that because of the diagnosis of schizophrenia and the attendant psychotic presentation of symptoms, the accused did have the requisite mental disorder at the relevant times.
[73] The second stage of the defence concerns the effects of the mental disorder. On this point and weighing the evidence on the standard of a balance of probabilities, it is the Court’s conclusion that at the time that the offences described in counts 8 and 10 were committed, the accused was more likely than not suffering from a mental disorder significant enough to allow him to advance the defence under section 16 (1) of the Criminal Code.
Conclusion
[74] Accordingly, I find that at the times relevant to all charges referenced in the ASF, the accused was not criminally responsible when each offence was committed. I therefore enter the special verdict of not criminally responsible pursuant to s. 672.34 on all counts.
R v Siddiqui, 2022 ONCJ 62
[February 15, 2022] 24(2) – Disclosure and Facial Recognition Software [Justice B. Jones]
AUTHOR’S NOTE: Although this case was ultimately a mere adjournment application and one that was not entirely successful for the defence, the really interesting portion for the defence is the treatment of facial recognition software disclosure. Herein, the relevance of the backend process that included the identification of the accused by the software was found to be relevant even though it was not being used by the Crown to prove the case. While the Crown was intending to rely on a police witness to compare a visual image of the accused with the person in court, the process that led to the identification was potentially relevant to challenging a search warrant application because other persons may have been identified by the software. As this technology gains wider acceptance in the courts, future litigation about the parameters of use and disclosure issues is sure to follow.
Introduction
[1] Mr. Siddiqui and Mr. Kawall are charged with a variety of offences including robbery, aggravated assault, and assault with a weapon arising out of events that occurred on September 27, 2020. Mr. Kawall is also charged with attempted murder. The Crown is proceeding by indictment and the defence elected to have a trial in the Ontario Court of Justice. That trial was set to commence on February 14, 2022 before me for 5 days.
[2] On February 14, both parties requested the matter be adjourned to today’s date to review some disclosure that had just recently been provided to the defence by the Crown. The expectation was that the trial might be able to start today. I granted that adjournment.
[3] Today, counsel for both Mr. Kawall and Mr. Siddiqui seek a further adjournment of the trial due to disclosure that remains outstanding. The Crown wishes to at least begin the trial today and has made efforts to obtain the outstanding disclosure. A review of the allegations and anticipated evidence in this case is necessary to determine how the adjournment request should be decided.
Overview Of The Case For The Crown
[4] Mr. Hogan provided the court with a detailed overview of the expected evidence for the Crown today if the trial should commence.
[5] On September 27, 2020, the complainant was robbed and assaulted by two persons in Thorncliffe Park, which is part of East York in Toronto. The incident occurred near the East York Town Centre located at 45 Overlea Boulevard. A 911 call was made and the police attended the scene of the crime and commenced their investigation.
[6] The lead investigator was DC Janjanin. The complainant only provided a brief utterance. The suspects were not initially identified. DC Janjanin was able to review video of the incident which was not of a high quality, taken approximately 50 feet from where the assault occurred. This video only provided some indication of what had occurred. The suspects could not be readily identified from it.
[7] DC Janjanin spoke to PC Espino, who is a community resource officer familiar with the area. PC Espino had regular contact with members of the community in this part of the city. When he reviewed the video, he identified Mr. Siddiqui as one of the suspects. He had prior experiences with Mr. Siddiqui. He informed DC Janjanin there were other video cameras located in the area that might provide higher quality video recordings of the incident.
[8] Through his subsequent investigation, DC Janjanin identified more video of both the incident itself, and of the suspects travelling in and around the area including through a mall that is located nearby. The Crown anticipates producing all of this video evidence at the trial as part of its case identifying the accused parties as the perpetrators of these offences.
[9] PC Espino reviewed these other videos on September 28, 2020 and ultimately formed the opinion that the second suspect was a person he had some prior interactions with as well. He believed he had seen this second suspect – now alleged by the Crown to be Mr. Kawall – approximately two weeks prior on September 5, 2020, and had in fact taken a picture of him at that time. Comparing the photograph taken and the video files to each other, both officers were satisfied the second suspect was the person PC Espino had encountered on this earlier date.
[10] A warrant was issued for the arrest of Mr. Siddiqui. The photographs taken by PC Espino on September 5, 2020 and a single still image from the video surveillance footage linked this investigation were sent to Officer Venerri of the Toronto Police Service who specializes in facial recognition software. Mr. Kawall was identified by this process as the potential second suspect. A warrant was sought and obtained for Mr. Kawall’s residence. It was executed on October 5, 2020, and items obtained from Mr. Kawall’s residence will form part of the case for the Crown. The Crown alleges these items may help “shore up” the identification of Mr. Kawall as the second suspect in the video of the incident itself.
[11] The Crown takes the position that the facial recognition software and the results it created are not admissible on the trial proper to actually prove that Mr. Kawall is one of the suspects. Rather, that evidence is simply part of the narrative of the police investigation. It is accepted by both parties however that part of the grounds for the information to obtain a search warrant did depend on the facial recognition software results.
Outstanding Disclosure
[12] Officer Venerri has produced part of the investigative file related to the use of the facial recognition software in this case. However, some parts do remain outstanding. For the purposes of this application, they can be summarized as how the “results” from the software are generated. One of the pages provided to defence counsel was partially redacted when the disclosure was first provided by the Crown’s office. The Crown is now diligently following up with the officers to determine what remains outstanding and hopes to provide it this week. The main concern from the position of Mr. Moriah is whether or not multiple results may have been generated by the software – that is, were other possible persons identified as possibly being the person in the video other than Mr. Kawall? If so, this might support an application to challenge the sufficiency of the grounds for the search warrant of Mr. Kawall’s residence. The Crown does not dispute this could be possible, although without having the disclosure materials in question it is not possible for Mr. Moriah to make this determination.
[13] With respect PC Espino, the Crown intends to produce him as a potential Leaney witness at the trial. Mr. Sansanwal has requested the officer’s memo book notes relating to his prior interactions with his client. He wishes to have that evidence so he can properly cross-examine the officer and challenge the strength of the witness’ identification of his client as one of the suspects in the video.
[16] Where a party to a criminal proceeding seeks an adjournment, two important considerations must be balanced:
(1) the fair trial interests of the accused, including his right to make full answer and defence; and
(2) the court’s obligation to control the trial process.
See R. v. Hinds, 2015 ONSC 5210 at para. 25; R. v. Hazout, 2005 CanLII 30050 (ON CA) at para. 31, leave to appeal refused [2005] S.C.C.A. No. 501; R. v. Nichols, 2001 CanLII 5680 (ON CA) at para. 23, leave to appeal refused [2001] S.C.C.A. No. 508; R. v. McCallen, 1999 CanLII 3685 (ON CA) at paras. 45-47.
[17] The onus is on the party bringing the application “to establish the grounds for the adjournment”: R. v. T.S., 2019 ONSC 5226at para. 32.
[19] An adjournment application is not a trial, and the strict rules of evidence do not apply: R. v. Baez, 2014 ONCJ 484 at para. 8. It is in fact commonplace for judges to rely upon hearsay information when deciding adjournment applications: R. c. McKenzie-Fletcher, 2020 QCCQ 2367 at para. 36.
[20] I have thus relied upon the submissions of counsel to obtain an understanding of the nature of this case, the evidence for the Crown, the significance of the outstanding disclosure, and the potential prejudice to the defence of both accused persons if the trial proceeds without that material being provided.
[21] Protecting the trial process considers both the accused’s and the public’s interest in having a criminal case disposed of on its merits in an expeditious and efficient manner. It also considers the importance of ensuring the integrity of the administration of justice: see R. v. Hinds at paras. 25 and 28; R. v. McCallen, supra at para. 46.
[22] There is no exhaustive list of factors to consider when determining whether to grant or refuse an adjournment: see R. v. Ke, supra, at para. 52. Prior jurisprudence establishes that factors to balance when considering a request for an adjournment include:
- The reasonableness and timeliness of the request;
- The grounds for the request;
- The gravity of the charges;
- The number of prior adjournments, if any; and
- The prejudice that might arise to either party as a result of an adjournment or a refusal to adjourn.
Analysis
[24] The outstanding disclosure items are clearly relevant. For Mr. Kawall the missing details from the facial recognition software analysis do not directly impact on the case for the Crown since the Crown does not intend to rely upon the results of that software analysis to implicate Mr. Kawall on the trial proper. However, the Crown does intend to lead evidence from the search of Mr. Kawall’s home to assist in proving the case against him. In that regard, Mr. Moriah’s position that obtaining this material is necessary to help him determine if he will challenge the information to obtain the search warrant is entirely reasonable and well-founded.
[25] Some discussion took place today that a potential search warrant challenge was not contemplated at the judicial pre-trial for this case. That does not change the relevance of this outstanding material. My concern today is with whether or not counsel requires this material to properly and effectively defend his client. I agree that he does. Whether or not he ultimately brings a Charter application related to the search warrant, he is entitled to know the entirety of the information that the affiant (DC Janjanin) had at his disposal at the time he provided sworn evidence in support of the information to obtain: see R. v. Garofoli, 1990 CanLII 52 (SCC) and its progeny. The Supreme Court of Canada emphasized in R. v. Morelli 2010 SCC 8 at para. 49 the importance of an “informant’s duty to make full and frank disclosure of all material information” in an information to obtain a judicial authorization.[1] Disclosure of this missing information related to the results of the facial recognition software analysis could therefore be relevant in a possible sub-facial challenge to the validity of the search warrant: R. v. Araujo, 2000 SCC 65 at para. 57.
[26] For Mr. Siddiqui, the outstanding notes of PC Espino constitute first-party disclosure and the Crown is obligated to produce them. A Leaney application addresses the admissibility of non-expert opinion evidence of a witness who, as a result of their familiarity with an accused, is relied upon to review images or videos of a suspect and provide recognition evidence. The extent to which the proposed witness is familiar with the accused is a central feature of the application: R. v. Berhe, 2012 ONCA 716 at para. 20 and 21; R. v. Field 2018 BCCA 253, aff’d 2019 CanLII 413 (SCC); R. v. Hudson, 2020 ONCA 507 at paras. 28-30.
[27] This evidence is only admissible where
- a) it is shown that the proposed witness has a prior acquaintance with the target individual and,
- b) is in a better position than the trier of fact would be in identifying the individual.
[28] Mr. Sansanwal should have all the required supporting material to mount an effective challenge to the officer’s opinion evidence that his client is one of the suspects in the video. The Crown has informed me PC Espino’s notes are available and he does intend to produce them.
[29] That being said, given the timeline with which the anticipated disclosure is set to be provided, I find that this trial may start today with the evidence of DC Janjanin and continue with the evidence of the complainant. Following their evidence, which is expected to conclude tomorrow, I have informed counsel that I will grant any request to have DC Janjanin recalled as a witness if further cross-examination is required once the missing facial recognition software disclosure is obtained.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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